The
above-entitled matter came on for hearing before the court sitting en banc on
Thursday, October 31, 2002 on the petition of Mike Erlandson, John Eisberg and
Mollie Lorberbaum for relief pursuant to Minn. Stat. § 204B.44(d) (2000),
alleging that the respondents Mary Kiffmeyer, Secretary of State, Patrick H.
O’Connor, Hennepin County Auditor/Treasurer, and other county election
officials have erred in failing to properly administer the instructions, the
absentee ballots and the supplemental ballots for the general election
scheduled for November 5, 2002.

Senator Paul
Wellstone was the nominee for the United States Senate on behalf of the
Democratic‑Farmer-Labor Party for the general election. On October 25, 2002, Senator Wellstone died,
creating a vacancy on the ballot under Minn. Stat. § 204B.41 (2000). On October 31, 2002, the
Democratic-Farmer-Labor Party filed a nomination certificate naming Walter
Mondale as the party’s nominee. On October
31, 2002, county election officials began preparing official supplemental
ballots with Mr. Mondale’s name in substitution for
Senator Wellstone.

Based
upon all the files, records, and proceedings herein,

IT IS
HEREBY ORDERED THAT:

1. An official supplemental ballot must
be prepared in accordance with Minn. Stat. § 204B.41 as a result of Senator
Wellstone’s death.

2. If a voter has already cast a
regular absentee ballot and requests, in any manner, an official supplemental
ballot, the county election official shall provide the official supplemental
ballot and a second regular absentee ballot, as a set, by mail using methods
authorized for mailing of absentee ballots in Minn. Stat. ch. 204B, or in
person if requested in person, to be utilized by the voter. Instructions shall accompany the ballot set
clearly stating that if the voter wishes to vote in the races on the regular
ballot the second regular absentee ballot must be completed and returned, and
that the second regular absentee ballot will replace the first regular absentee
ballot cast by the voter.

3. If a voter casts two regular
absentee ballots, the ballot with the later date on the return envelope shall
be counted.

4. If a
voter casts a regular absentee ballot but does not cast an official
supplemental ballot, the ballot shall be counted in the same manner as if the
vacancy had not occurred.

5. If a voter casts a second regular
absentee ballot and an absentee official supplemental ballot, the second
regular absentee ballot shall be counted for all races except the office of
United States Senator. The official
supplemental ballot shall be counted for the office of United States Senator.

6. County election officials shall
personally provide an official supplemental ballot and a second regular ballot
to agents designated by persons in health facilities pursuant to Minn. Stat.
§ 203B.06, subd. 3(b) (2000).

7. County election officials must
timely deliver official supplemental ballots and second regular ballots to
health care facility residents who received a regular ballot pursuant to Minn.
Stat. § 203B.11 (2000).

8. A
person may write in the name of a candidate either on the regular absentee
ballot or the official supplemental ballot.

9. Minnesota Statutes § 204B.45 (2000)
provides that voters residing in municipal areas with fewer than 400 registered
ballots may vote by mail. Mail
balloting is a procedure different than absentee balloting. If a voter has already submitted a “mail
ballot” and requests, in any manner, an official supplemental ballot, the local
election official shall provide the official supplemental ballot and a second
regular ballot, as a set, by mail using methods authorized for mailing of
absentee ballots in Minn. Stat. ch. 204B or in person if requested in person, to
be utilized by the voter. Instructions
shall accompany the ballot set clearly stating that if the voter wishes to vote
in the races on the regular ballot the second regular ballot must be completed
and returned, and that the second regular ballot will replace the first regular
ballot cast by the voter.

10. So as not to impair the orderly
election process, this order is issued with opinion(s) to follow.